Name Change NOT in the Child’s Best Interest

January 29, 2019 § Leave a comment

As I have mentioned around here before, change of a child’s name in a paternity case can be, to put it mildly, a contentious issue. You can read a previous post on the topic at this link.

Authority for the court to change the child’s surname is at MCA § 93-9-9(1), which says that, “The surname of the child shall be that of the father, unless the judgment specifies otherwise.”

The key case interpreting the statute is Rice v. Merkich, 34 So.3d 555 (Miss. 2010)., which holds (at page 557) that the trial court should change the child’s surname to that of the father unless the mother proves by a preponderance of the evidence that it would not be in the child’s best interest to change the child’s name.

In a recent case, Olson v. Bennett, decided December 18, 2018, the COA reversed and rendered a chancellor’s decision to change the child’s name. Robert Bennett had filed a paternity action after his child was eight years old and had already started school. Bennett had attended the birthing of the child, but refused to be listed as father on the birth certificate, and insisted on a paternity test. Due to his refusal to be named on the birth certificate, the child took the mother’s name, Olson. Even after the DNA test confirmed his paternity, Bennett took no action to have his name added to the birth certificate, and he did not immediately begin paying child support. The child lived exclusively with the mother, Lana, and Bennett was mostly absent from the child’s life until he filed his court action.

After Bennett filed his paternity action, the parties settled all issues of custody and support, leaving the issue of name change for the court to adjudicate. The chancellor ordered that the child’s name be changed to Bennett, but stayed registration of the judgment with the Department of Vital Records until resolution of appeal. Lana did appeal.

Here is how Judge Wilson analyzed it for the 7-3 majority [the child is referred to by the fictitious name “Noah”]:

¶16. In this case, the chancellor cited Rice, but many of the chancellor’s statements were inconsistent with Rice’s best-interest/preponderance-of-the-evidence standard. As noted above, the chancellor began the hearing by suggesting that he could make an “exception” to the rule that a “child shall take the last name of the father” only if Lana proved that “the circumstances are such that it is just really a traumatic kind of thing that would make it just absolutely inappropriate for the child to carry the father’s name.” The chancellor further stated that he could make an exception if there was “something seriously wrong with the father”—for example, if the father had raped the mother or “was a pedophile and had been abusing the child.” The chancellor indicated that some other “drastic” set of facts might justify an exception, although he did not provide additional examples. At the conclusion of the hearing, the chancellor recognized that there were “certainly some reasons that [Lana] could point to and say it would be in [Noah’s] best interest to leave [his name] as it is.” But the chancellor then concluded: “I don’t think that [Lana’s reasons] meet the criteria that the Supreme Court has set for us to be able . . . to allow the name to be different from what the statute says. The statute says that the child shall carry the father’s name.” The chancellor then “reluctantly” ordered Noah’s surname to be changed to Bennett.

¶17. The chancellor’s statements imply a misreading of the majority opinion in Rice. Lana was not required to prove that there was “something seriously wrong” with Bennett or that it would be “absolutely inappropriate” for Noah to have Bennett’s surname. Nor was Lana required to prove that Noah would be traumatized by a name change. Under Rice, Lana only needed to show, by a mere preponderance of the evidence, that it would not be in nine-year-old Noah’s “best interest” to change his name. Rice, 34 So. 3d at 557 (¶¶8-9). We conclude that Lana met her burden and that the chancellor manifestly erred by ruling otherwise.

¶18. To begin with, the facts of this case are materially different from the facts of Rice. In Rice, Merkich took action when Presley was only weeks old so that she was barely one year old when her name was changed. As Justice Lamar put it, Presley was still “too young even to know her last name.” Id. at 563 (¶28) (Lamar, J., dissenting). In contrast, Bennett did not seek visitation with Noah or take any action to change his name until Noah was nearly eight years old. Thus, Noah was nine years old by the time of the hearing in the chancery court, [Fn 6] certainly old enough to have become accustomed to his name.

[Fn 6] Noah is now ten years old.

¶19. Moreover, Lana presented some evidence to support her contention that it was not in Noah’s best interest to change his surname. Lana and Sharon could not and did not testify that a name change would result in certain harm to Noah, but that is to be expected. In most cases, it will be difficult, if not impossible, for a mother to produce objective evidence that a name change will cause a specific, certain harm to her child. Nonetheless, Lana and Sharon provided legitimate reasons why it would not be in Noah’s “best interest” to change his name. Indeed, at the conclusion of the hearing, the chancery court recognized that “certainly” there were “some reasons that [Lana] could point to and say it would be in [Noah’s] best interest to leave [his name] as it is.” Given Noah’s age and history of behavioral issues at school, it was reasonable for Lana and Sharon to be concerned that a sudden name change could have a negative impact on him.

¶20. On the other side of the scale, Bennett presented no reason or evidence that it would be in Noah’s best interest to change his name at age nine. Bennett stated only, “I want him to carry . . . his family name . . . . My father passed my name down to me, and I want to pass it down to my children.” Bennett’s feelings are understandable, but he failed to act on them—or even pursue visitation with Noah—until Noah was nearly eight years old. More important, Bennett’s desire to pass on his family name is not the equivalent of Noah’s best interest. “[T]he child’s best interest” is not the same thing as “either parent’s best interest.” Vassar v. Vassar, 228 So. 3d 367, 375 (¶26) (Miss. Ct. App. 2017). Put simply, “[t]he relationship of parent and child is not for the benefit of the parent, but of the child.” Reno v. Reno, 253 Miss. 465, 475, 176 So. 2d 58, 62 (1965) (quoting J.W. Bunkley Jr. & W.E. Morse, Amis on Divorce and Separation in Mississippi § 8.01 (2d ed. 1957)).

¶21. In summary, Lana presented legitimate reasons that it was not in Noah’s best interest to change his name, while Bennett presented no reason that a name change would benefit Noah. Lana met her burden of proof under Rice, and the chancery court manifestly erred to the extent that it concluded otherwise. Accordingly, we reverse and render the judgment of the chancery court insofar as it ordered Noah’s surname to be changed. [Fn omitted] Noah’s last name shall remain Olson.

Westbrooks dissented, joined by Greenlee and Irving, taking the position that Lana had not met her burden of proof.

It would appear that Bennett’s lengthy delay in bringing an action cost him in this case.

Oh, and a cite to Bunkley and Morse is a nice touch. Some long-established principles are fresh even in quotations more than 60 years old.

Parental Rights of the Anonymous Sperm Donor

May 30, 2018 § 4 Comments

The law has always had to scurry along in the wake of technology, tidying up and redefining legal relationships affected by advances in science and medicine.

The latest instance arises out of the field of assisted reproductive technology, and addresses the issue of the parental rights of the anonymous sperm donor in the custody of a child born as a result of artificial insemination (AI).

Christina Strickland and Kimberly Day were married to each other in Massachusetts in 2009, and their marriage was later recognized in Mississippi, where they had taken up residence. In 2011, Kimberly was artificially inseminated and gave birth to a son, ZS. They separated in 2013, and were divorced in 2016, with custody of ZS being a contested issue. Following a hearing, the chancellor ruled that the child was born during the marriage, but that the parental rights of the natural father had not been terminated, thus precluding Christina’s claim to custody. Christina appealed.

In the case of Strickland v. Day, a case of first impression, a plurality of the MSSC held on April 5, 2018, that an anonymous sperm donor has no parental rights. Justice Ishee wrote for the plurality:

¶15. The chancery court’s decision, finding Christina not the legal parent of Z.S., turned largely on its determination that the sperm donor was the “natural father,” whose parental rights were subject to termination. On appeal, Christina argues that this finding is not supported by the evidence and is an erroneous conclusion of law. We agree.

¶16. At the outset, we are cognizant of the fact that we never before have determined what parental rights, if any, anonymous sperm donors possess in the children conceived through the use of their sperm. As such, this is an issue of first impression.

¶17. In searching our state’s existing law, the only law that even addresses AI is the disestablishment-of-paternity statute—Mississippi Code Section 93-9-10(2)(d) (Rev. 2013). And while Section 93-9-10(2)(d) does not address anonymous sperm donors’ parental rights directly, we find it useful as it illustrates the Legislature’s intent on such rights. Indeed, under Section 93-9-10(2)(d), a father cannot seek to disestablish paternity when the child was conceived by AI during the marriage to the child’s mother. Reading this provision, in light of the context before us, the logical conclusion—while not explicit—is that the Legislature never intended for an anonymous sperm donor to have parental rights in a child conceived
from his sperm—irrespective of the sex of the married couple that utilized his sperm to have that child.

¶18. How, on one hand, can the law contemplate that a donor is a legal parent who must have his rights terminated, while at the same time prohibiting the nonbiological father of a child conceived through AI from disestablishing paternity? These two policies cannot coexist. And for one to make such a logical leap effectively would say that the child has three legal parents: the mother who birthed the child, the natural father who donated his sperm, and the person who was married to the child’s mother (and is statutorily prohibited from disestablishing paternity). Three parents—that cannot be what the Legislature intended. Indeed, even the chancery court here said that cannot be possible.

¶19. In making its determination, the chancery court seemed to place great weight on the biological connection between the anonymous sperm donor and Z.S. Yet the Supreme Court of the United States has held that “[p]arental rights do not spring full-blown from the biological connection between the parent and child. They require relationships more enduring.” Lehr v. Robertson, 463 U.S. 248, 260, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983) (quoting Cuban v. Mohammed, 441 U.S. 360, 397, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979) (Stewart, J., dissenting)) (emphasis added). In a similar vein, we too have held that a biological connection alone is not enough to establish parentage. See Griffith v. Pell, 881 So. 2d 184, 186 (Miss. 2004) (finding that a biological father does not have any paternity rights where “he fails to establish that he has had a substantial relationship with the child”).

¶20. As a broader policy consideration, we find that requiring parents of a child conceived through the use of AI to terminate parental rights of the donor would not be in the best interest of the child—to say nothing of the expense and time it would require. When children are involved, we consistently have held that “the polestar consideration . . . is the best interest and welfare of the child.” Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).

¶21. The consequences of assigning rights to donors, who do not engage in an act of procreation but provide biological material with no intention to act as a parent, would disrupt the familial relationships and expectations of Mississippians who have conceived children through the use of AI. For one, it would elevate the rights of a donor—who is a complete stranger to the child, and likely never will be identified—over the rights of a person who has known and cared for the child. Make no mistake—affirmance here arguably would impose parentage, and all its responsibilities, on anonymous sperm donors who contribute sperm to assist families in achieving pregnancy—perhaps creating a chilling effect on sperm donation. Furthermore, it effectively would leave many children conceived through this method with one legal parent. And in the tragic situation in which a mother dies during childbirth or before a proper termination proceeding—it would leave the child an orphan. Such a notion is untenable and certainly contrary to the public policy of this state.

¶22. On appeal, Kimberly’s position is that all of the nonbiological parents of children conceived through AI should be required to terminate the sperm donor’s parental rights and then establish parentage through the adoption process. We disagree. As a practical matter, the process of requiring one under these circumstances to adopt her own child (one which she intentionally agreed to bring into the family) would be intrusive, time-consuming, and expensive. In fact, it would require: parents who use AI with anonymous sperm donation to file a petition and wait thirty days to seek a hearing; a guardian ad litem to be appointed by the court at the parents’ expense; and a hearing to be held to determine whether an
unknowable sperm donor has abandoned the child. See Miss. Code Ann. § 93-15-107 (Rev. 2013).

¶23. One of the rationales behind termination statutes no doubt is to safeguard the rights of any potential parent-child relationship. Indeed, this Court has held that “[p]arents have a liberty interest, more precious than any property interest, in the care, custody, and management of their children and families.” G.Q.A. v. Harrison Cty. Dep’t Of Human Res., 771 So. 2d 331, 335 (Miss. 2000) (citing Santosky v. Kramer, 455 U.S. at 753–54, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)). The seriousness of the action is reflected in the fact that termination of such rights requires clear and convincing evidence of the statutory grounds for termination. Chism v. Bright, 152 So. 3d 318, 322 (Miss. 2014) (citing Kramer, 455 U.S. at 754).

¶24. But with anonymous sperm donors there is no reason to protect the donor, as the donor has no intention or desire to act as a father. In reaching its conclusion in this case, the chancery court found that the donor was merely an “absent father,” but in reality, the donor is a nonexistent father. For the child could never find the donor, much less have a meaningful relationship with him. It is one thing for a child to cling to the hope of a possibility of discovering and eventually building a relationship with an absent father; it is quite another thing for a child to know that he has a natural father that he has no possibility of ever discovering, let alone having a relationship with. That is, short of perhaps a court order mandating the disclosure of the donor’s identity, it is arguably factually and legally impossible for the child ever to obtain the identity of the donor.

¶25. The impracticality and futility of applying the termination statute in this context is clear. Under Section 93-15-107, the natural father is a necessary party to such termination action, but here, or with any anonymous donor, whose identification cannot be known, compliance with the statute arguably is impossible. One cannot serve a party with no information to act upon and which likely never can be acquired.

¶26. To that end, Kimberly argues that Christina, and nonbiological parents alike, can effectuate this service though publication. To be sure, the text of the statute does allow for publication of service of a “necessary party whose address is unknown after diligent search[.]” Miss. Code Ann. § 93-15-107(1)(b) (Rev. 2013) (emphasis added.) Publication in this instance is for a party whose address is unknown, not a party whose identity is
unknown. (Emphasis added). What is more, how can it be evaluated whether there was a diligent search for the party, if the party is unknown? The chancery court itself conceded that it is unlikely that the donor ever could be hailed before the court. The chancery court also conceded that this donor’s identification likely would never be known. And with an absence of identification, publication practically cannot be effectuated in every case in which a couple utilizes AI to bring a child into the family. Indeed, publication under the statute presupposes that, while one may not know the exact location of the party, one at least knows, at a minimum, the identity of the party. This is not to say that, under these circumstances, service by publication could not be accomplished; it is, however, to say that, as a matter of public policy, we find it unwise to demand that it must be accomplished.

¶27. And so, we ask, would it not be futile for the chancery court to require parties to comply with a statute the chancery court itself admits cannot be satisfied due to reasons beyond the control of the parties? Though this exact question is not before us here, we find it demonstrative of the impracticability and futility of requiring compliance with Section 93-15-107(1)(b) in this context.

¶28. Aside from our determination that anonymous sperm donors, in general, do not possess parental rights in the children conceived through the use of their sperm, we also find that there is no other vehicle which allows us to conclude that the anonymous sperm donor here is Z.S.’s parent. The donor was not married to the mother at the time of Z.S.’s conception or birth, he has not executed a voluntary acknowledgment of paternity, and he has not been adjudicated to be the child’s “natural” father under state law. Miss. Code Ann. § 93-9-28 (Rev. 2013).

¶29. In sum, we find that the chancery court erred in finding that an anonymous sperm donor was Z.S.’s parent whose parental rights had to be terminated. Indeed, we find that there is no legal or policy basis to find that an anonymous sperm donor is a parent in this specific context.

Some thoughts:

  • This decision has limited precedential value since it is a plurality decision. But a majority broadly agree that the chancellor erred in ruling that the parental rights of the sperm donor had to be terminated as a prerequisite to a custody contest between the parties, so I would surmise that future litigation over the same issue will result in an outcome similar to this.
  • Justice Waller’s separate opinion points out that the legislature needs to address this issue. He’s right, since there is no statute directly on point.
  • I am uncomfortable with the language in the opinion that talks about the impracticality of requiring process on the sperm donor. Our court should not put a price, so to speak, on due process. Notice and an opportunity to defend are required in a wide range of cases — including those involving unknown fathers — without regard to the difficulty or impracticality of process. I agree that a sperm donor should not be required to be made a party to the litigation in AI cases; however, impracticality of process would not be a component of my rationale were I called upon to decide the case.
  • What cost the plurality a majority is the plurality’s treatment of equitable estoppel in the opinion beginning at ¶30. The dissenters take the position that since the equitable estoppel issue was never squarely presented to the chancellor, it is improper to take it up on appeal. On this I agree with Justice Coleman that it was unnecessary to address it. I would have ended the opinion at ¶29.
  • I found it interesting that the fact that this case arose out of a same-gender marriage was only mentioned in passing and played no part in the ultimate outcome. That is an indication that Obergefell has been absorbed into our law.

Another Joint Custody Award in a Non-Divorce Case

December 13, 2017 § Leave a comment

In previous posts that you can read here and here, we talked about awards of joint custody in cases that did not involve divorce. The former link was a paternity case; the latter was a third-party custody dispute between grandparents.

In yet another paternity case the chancellor awarded joint custody and his decision was affirmed in Rayner v. Sims, handed down October 17, 2017, by the COA.

The case is not particularly noteworthy, except to add it to your stockpile of authority supporting awards of joint custody in non-divorce cases.

The COA’s decision does include a discussion of one way that a chancellor may calculate child support in a shared-custody arrangement. Here’s what Judge Griffis’s opinion had to say about it:

¶29. Mackie further claims the chancellor “engaged in his own computation of the child support obligation that is not supported by or authorized by statute.” We disagree. The chancellor ordered that Chance would have physical custody three days per week, and Mackie would have physical custody four days per week. The chancellor found that child support for the minor child would be based “upon 14 percent of each party’s adjusted-gross income” and that each party “shall pay child support in proportion to their periods of shared custody and their incomes.” [Fn 6] We find statutory support for the chancellor’s decision.

[Fn 6] The chancellor stated he would leave it up to the attorneys to “do the math.”
Counsel subsequently submitted an exhibit, which outlined the child-support calculation.

¶30. Mississippi Code Annotated section 43-19-101(1) (Rev. 2015) provides that 14% of a party’s adjusted gross income should be awarded for the support of one child. Pursuant to section 43-19-101(2), the percentage outlined in subsection (1) applies unless the court “makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in section 43-19-103.” Under Mississippi Code Annotated section 43-19-103(g) (Rev. 2015), the “particular shared parental arrangement” is a factor the chancellor may consider in his adjustment of the statutory guidelines established by section 43-19-101(1). Miss. Code Ann. § 43-19-103(g).

¶31. Here, the record shows that the chancellor found the statutory percentage, as outlined in section 43-19-101(1), should be adjusted based on the parties’ joint custody arrangement, “in proportion to their periods of shared custody.” The chancellor further ordered that Chance shall continue to provide insurance for Frances. Such decision is supported and authorized by statute. Accordingly, we find no error and affirm.

We have all seen this apportionment of child support process handled a hundred different ways. I am sure you have seen some creative ways yourself. As long as the result comports with the statutory percentages and takes into account the shared custody arrangement, the judge’s decision would likely be affirmed.

Joint Custody Outside of Divorce

November 14, 2017 § 1 Comment

We all know that the chancellor may award joint physical custody in an irreconcilable-differences divorce, but what about when the natural parents have never been married to each other and they are before the court in a custody dispute? May the chancellor award joint custody?

That was one of the issues before the COA in the case of Roberts v. Eads, handed down October 10, 2017. In that case, Lauren Roberts sued Tyler Eads for custody and support of their son, Thomas. Tyler counterclaimed for custody, sole or joint. The chancellor granted them joint physical and legal custody, and Lauren appealed. The COA affirmed. Judge Carlton wrote for a unanimous court:

¶22. In addition to challenging the chancellor’s application of the Albright factors, Lauren claims that the chancellor’s award of joint physical custody violates Easley v. Easley, 91 So. 3d 639 (Miss. Ct. App. 2012), and Mississippi Code Annotated section 93-5-24(2) (Rev. 2013).

¶23. In Easley, the chancellor granted the parties an irreconcilable-differences divorce. Easley, 91 So. 3d at 640 (¶1). Section 93-5-24(2) provides that joint custody may be awarded in an irreconcilable-differences divorce “in the discretion of the court, upon application of both parents.” Following a trial in Easley, “the chancellor determined that joint physical custody was in the children’s best interest, but he erroneously concluded that the statute did not allow it to be awarded unless both parties expressly presented joint custody for consideration.” Easley, 91 So. 3d at 640 (¶1). The chancellor therefore awarded sole custody of the parties’ children to the father while granting the mother visitation. Id. On appeal, this Court concluded that, “after finding joint custody to be in the children’s best interest, the chancellor’s award of custody to one parent was an error of law.” Id. at (¶2). We therefore reversed the chancellor’s judgment and remanded the case so the chancellor could apply the proper legal standard. Id.

¶24. Upon review of the present case, we find no merit to Lauren’s claim that the chancellor’s award of joint physical custody violated either section 93-5-24(2) or our holding in Easley. As stated, section 93-5-24(2) provides a chancellor with the discretion to grant joint custody in an irreconcilable-differences divorce. However, the present case involves no such divorce since the parties were never married. We further note that section 93-5-24(3) provides a chancellor with the discretion to award joint custody “[i]n other cases . . . upon application of one or both parents.” As the record here reflects, in responding to Lauren’s custody petition, Tyler requested sole custody or, in the alternative, joint custody.  Furthermore, after considering the Albright factors, the chancellor determined that joint legal and physical custody served Thomas’s best interest. [Fn omitted] As Easley recognized, a chancellor may grant joint custody, even where both parties do not present the issue, if such an arrangement
is in the child’s best interest. See Easley, 91 So. 3d at 640 (¶1). We therefore find no merit to Lauren’s assertion that the chancellor’s judgment violated Mississippi statutory law and caselaw.

¶25. The chancellor’s judgment is affirmed.

That’s something you might be able to put to good use.

An Attempted Paternal Disappearance

January 9, 2017 § Leave a comment

Danny Hicks fathered a child by Jakeida Carter in January, 2007. In October of that year, Danny agreed to be listed as the father of the child, Janiyah, on her birth certificate. Around one year later, Danny entered into a stipulated agreement with DHS admitting paternity and agreeing to pay $202 a month in child support. The agreement was approved by court order. Things rocked gently on in domestic bliss thereafter. Janiyah called Danny “Daddy.” He was involved in Janiyah’s life, was active in her schooling, and, by all accounts was a good father. What could possibly go wrong?

Well, in 2015, a DNA test disclosed that Danny was not Janiyah’s biological father.

Danny filed a petition in chancery court to disestablish paternity and to terminate child support; he also wanted to be reimbursed $1,800 for the unhappy DNA results. Following a hearing, the chancellor responded no, no, and no, citing MCA 93-9-10(3)(c). Danny appealed.

The COA affirmed on December 6, 2016, in a four-page opinion by Judge Fair that was, in my opinion, lengthier than necessary. The words, “Affirmed per MCA 93-9-10(3)(c),” would have sufficed for me. You can read the COA’s opinion at this link.

As I pointed out in detail a previous post, in order to disestablish paternity since 2013, your client’s case must meet the criteria of the statute. In Danny’s case, he failed because, once a court approved a stipulation or acknowledgment of paternity, it was unassailable unless he had filed a petition to set it aside within the time specified in MCA 93-9-9. Danny waited ten years to petition, which is ‘way more than a tad too long.

Danny also argued that the chancellor committed reversible error by not seeing to it that Jakeida was sworn in before she testified. The COA pointed out that he waived that issue by not making a contemporaneous objection at trial.

Another, more substantial, point raised by Danny was that he should have been granted MRCP 60 relief because, he claimed, Jakeida committed fraud in claiming that he was the father. Other than his assertion, there was no evidence in the record of actual fraud. Moreover, the COA held, since he never filed a R60 motion with the trial court, he could not raise the issue for the first time on appeal.

Related note: In Finch v. Finch, 137 So.3d 227, 233 (Miss. 2014), the MSSC held that a chancellor may raise fraud on the court sua sponte in the course of a trial; however, there is no authority for the proposition that a chancellor is obligated to do so. It would have been improvident for the chancellor in this case to do so in the absence of clear and convincing evidence.

Before you go thundering off into court to vindicate a dad in a situation similar to Danny’s, be sure you familiarize yourself with MCA 93-9-10. You might save yourself and your client some grief … and money.

The Name Game

September 13, 2016 § 3 Comments

A contentious issue in many paternity cases is what the surname of the child will be. It is contentious between the parties, certainly, and often with the parents, grandparents, aunts, uncles, and siblings who sit in the cheering section. The law, though, is rather clear on what is to be done about the child’s name.

Jeremy Flynn and Madison Bland had a relationship that resulted in the birth of a daughter, Allyson. When she learned she was pregnant, Madison told Jeremy, who asked for a DNA test. Madison refused because she thought it could harm the baby.

Their contact continued sporadically through the pregnancy, including one occasion when Jeremy accompanied Madison to the Medicaid office to enroll her for prenatal care.

On November 6, 2006, Allyson was born. Jeremy did not participate, and he was not listed on the birth certificate. Madison and the baby lived with Madison’s parents. When Madison attempted to show the new baby to Jeremy, he ran from them, according to the testimony.

Jeremy had little involvement in Allyson’s life. He claimed it was because he did not even know he was the father until 2010. The evidence was conflicting. He filed a petition for filiation, and an agreed DNA test established that he was, in fact, the father. Madison’s parents, the Blands, filed an intervening petition for custody. Following a trial, the chancellor found that Jeremy had deserted Allyson, and awarded the Blands custody and refused to change Allyson’s surname to Flynn. Jeremy appealed.

In Flynn v. Bland, decided August 30, 2016, the COA affirmed the award of custody, but reversed and rendered the chancellor’s denial of the name change. Judge Ishee wrote for the court:

¶15. Finally, Jeremy takes issue with the chancery court’s decision not to change Allyson’s surname to Flynn. Jeremy cites Rice v. Merkich, 34 So. 3d 555 (Miss. 2010), in support of his argument. We find Rice on point. Rice involved a child born to an unwed mother who failed to inform the father of the child’s birth. Id. at 558 (¶2). Accordingly, the child’s father was not given an opportunity to sign a paternity form. Id. The Mississippi Supreme Court quoted Mississippi Code Annotated section 41-57-23(2) (Rev. 2009), which provides:

If a child is born to a mother who was not married at the time of conception or birth, or at any time between conception and birth, and the natural father acknowledges paternity, the name of the father shall be added to the birth certificate if a notarized affidavit by both parents acknowledging paternity is received on the form prescribed or as provided in [Mississippi Code Annotated] [s]ection 93-9-9 [(Rev. 2004)]. The surname of the child shall be that of the father except that an affidavit filed at birth by both listed mother and father may alter this rule. Rice, 34 So.3d at 558 (¶10).

¶16. Ultimately, the supreme court in Rice determined that because the mother failed to prove by a preponderance of the evidence that it was in the child’s best interest that the child’s surname not be that of the father, the child should bear the father’s surname. See id. at 559 (¶16). In doing so, the supreme court noted that, in addition to conforming with applicable statutes on the topic, the decision also adhered to the Rules Governing the Registration and Certification of Vital Events by the Mississippi State Department of Health. Id. at 558-59 (¶¶11-12).

¶17. Furthermore, “in the event of court-determined paternity, the surname of the child shall be that of the father, unless the judgment specifies otherwise.” Miss. Code Ann. § 93-9-9(1). As explained in Rice, “[a]lthough the statute does not delineate those circumstances where the ‘judgment specifies otherwise,’ it is reasonable to conclude that those circumstances should be examined in light of the best interest of the child, if, and only if, this is a contested issue.” Rice, 34 So. 3d at 557 (¶8).

¶18. Here, the record is clear the Blands did not contest the change-of-name request and have failed to show by a preponderance of the evidence that it is not in the best interest of Allyson to bear her father’s surname. We reverse the chancery court’s decision on this issue, and render the change of Allyson’s surname from Bland to Flynn in accordance with section 93-9-9(1).

That’s a pretty nifty recap of the law on name change in paternity cases. It might be just what you need to guide your client — and the cheering section — in deciding whether to litigate this issue.

Temporary Support in a Paternity Case

December 2, 2015 § 2 Comments

Is there a right to a temporary hearing in a paternity case? If so, by what authority?

We know that chancellors in divorce cases may grant temporary relief per MCA 93-5-17(2), which allows the judge to make orders for “temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.”

In paternity cases, however, you can search high and low in Title 93, Chapter 9, dealing with paternity actions, and you will not find a similar statute conferring temporary authority. So, does that mean you can’t have a temporary hearing in a paternity action?

In a word, no.

The answer is in MCA 93-11-56(10), which states:

Upon motion of a party requesting temporary child support pending a determination of parentage, temporary support shall be ordered if there is clear and convincing evidence of paternity on the basis of genetic tests or other evidence, unless the court makes written findings of fact on the record that the award of temporary support would be unjust or inappropriate in a particular case.

I have had a lawyer argue that if paternity is uncontested, then there is no pending determination, so temporary relief should be denied. I disagree for the reason that I believe the “determination of parentage” means a final judgment. If there is no final judgment, then I think temporary relief is appropriate, as it would be in a divorce.

So, is the court limited by the language of the statute to temporary support only, leaving the parties to play tug-of-war with the child until a final hearing can be had? I think that would be an absurd result. Section 93-11-65 gives the court general authority to hear custody determinations. Chancery courts are charged to do what is in the best interest of the child. In my opinion, the court must act.

Next time you are asked by a chancellor by what authority you are asking for temporary relief in a paternity case, cite MCA 93-11-65(10). You won’t find it among the paternity statutes.

As a side note, our legislature has amended the custody and support statutes repeatedly to accommodate requests by DHS to address issues they have faced. As a result, we have a mish-mash of conflicting and unclear language, some of which is difficult to harmonize with standard practice in chancery court. One of many examples is the TPR statute that was clearly amended to address DHS concerns, but as a result became inoperable between private parties as a result, as pointed out in this post on the MSSC’s decision in Chism v. Bright. It would be great if some commission could study these statutes, clarify them, distinguish between chancery and county court actions where appropriate, and remove the ambiguities.

When is Temporary Relief Available in Family Law Cases?

June 18, 2014 § 5 Comments

I have heard it said that chancery courts routinely grant temporary relief in any matters pending before them. Is that so? And in what matters is temporary relief available?

Let’s look at family law.

Anyone who has done any Mississippi family law knows that temporary relief is available in divorce cases. The authority of the chancery court to grant temporary relief in a divorce proceeding is found in MCA 93-5-17(2), which provides:

The chancellor in vacation may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.

Divorce is a creature of statute unknown in the common law; therefore, any relief obtainable in a divorce must have its source in a statute. Since this statute is part of the title dealing with divorce, and is a subsection of the statute that requires divorce hearings to be held in open court, I am confident in saying that this particular statute is not authority to grant temporary relief outside the context of a divorce.

Likewise, in cases of determination of parentage, MCA 93-11-65(10) creates a remedy:

Upon motion of a party requesting temporary child support pending a determination of parentage, temporary support shall be ordered if there is clear and convincing evidence of paternity on the basis of genetic testing or other evidence, unless the court makes written findings of fact on the record that the award of temporary support would be unjust or inappropriate in a particular case.

Notice that the latter statute does not not include custody among the relief provided. The COA has held that both natural parents have an equal right to custody of the child, regardless whether parentage has been finally determined. So, on the one hand, it would appear in a custody dispute between parents in a parentage case that the tug-of-war between them must continue unabated by temporary custody because there is no provision in the statute for temporary custody. The conundrum is exacerbated by the simple fact that support is customarily (always?) paid to the parent with custody, which is certainly logical, because we have to know where the child will be in order to know where to direct the support. If the court has no statutory authority to award custody in such a case, how can the court award child support?

It could be that the chancellor may simply order extra-statutory temporary relief in a given case based on equitable principles. In the parentage case, for example, the court could award temporary custody in order to get to the statutorily permissible temporary support award.

But would such an order stand? After all, we know that there is no appeal of right from a temporary or interlocutory order.

I think the distinction may lie in the nature of the review. If the merits of the order are attacked, then I think the appeal fails. If the power of the court to grant the temporary relief is attacked, then I think the appeal would have merit. An example of the latter is Martin v. Falcon, #2013-IA-1985-SCT (December 5, 2013), in which Justice Coleman vacated a temporary order granting grandparent visitation.

Is there even a right to a temporary hearing in a grandparent visitation case? I would argue in the negative, for two reasons: (1) the grandparent visitation statute has no provision whatsoever for temporary relief, and like divorce and parentage, it is a creature solely of statute; and (2) to grant temporary relief is to presume on the ultimate issue that the petitioner is entitled to such relief, which is not always so.

Of course, temporary relief is expressly available in injuntions, per MRCP 65, in the form of a TRO. A TRO does require the existence of an emergency or danger of irreparable harm if no relief is immediately granted. And the domestic violence statutes incorporate such relief.

Custody modification cases and third-party custody cases are somewhat more problematical. There are statutes dealing with custody, and its award and forms, but they do not specifically mention temporary relief. In this district, we do not allow temporary relief in a child-custody-modification case unless there is an emergency or it is clearly necessary to protect the best interest of a child until a final determination may be made. To do otherwise would peremptorily adjudicate the ultimate issue in the case.

When the chancellor acts in an emergency or other exigent situation to protect the child, her actions are based on Article 6, § 159 of the Mississippi Constitution, which gives chancery courts “full jurisdiction” over “All matters in equity,” and “Minor’s business.” Custody has long been recognized as being under the mantle of chancery jurisdiction, and, indeed, our cases speak in terms of the chancellor being the “superior guardian” and protector of the child’s best interest. I think as between the apparent form required by statute and the chancellor’s determination that action must be taken for the best interest of a child, the court will and should go with the best interest every time.

I would reconcile all of the foregoing by saying that I believe that, in the absence of exigent circumstances requiring immediate intervention the court should avoid temporary relief unless there is a statutory provision or rule expressly providing that relief. Your chancellor may see it differently, based on an entirely different rationale, but that is the way I view it.

This post addresses temporary relief in family law matters. Temporary relief in the many other types of cases within chancery jurisdiction is the subject of another post.

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Thanks to Attorney George S. Whitten of Greenwood for supplying some of the material for this post.

In Loco Parentis Child is not a Wrongful Death Beneficiary

January 30, 2014 § Leave a comment

The MSSC ruled last week that the child of an in loco parentis parent is not a wrongful death beneficiary under our statute.

The outcome would seem to be preordained, given that wrongful death is entirely a creature of statute, which must be strictly construed. Justice Randolph, writing for the majority in Estate of Smith v. Smith, handed down January 23, 2014, summed it up: 

¶9. This Court has recognized the doctrine of in loco parentis for more than a century. Fortinberry v. Holmes, 42 So. 799, 799 (Miss. 1907). Specifically, the doctrine is defined as follows:

A person in loco parentis may be defined as one who has assumed the status and obligations of a parent without a formal adoption. The rights, duties and liabilities of one standing in loco parentis are the same as those of a natural parent. Whether the relationship exists is a matter of intention and of fact to be deduced from the circumstances of the particular case.

Farve v. Medders, 128 So. 2d 877, 879 (Miss. 1961).

¶10. In short, Halley is not a wrongful-death beneficiary because she is not Justin’s child, as defined in Mississippi Code Section 11-7-13. See Miss. Code Ann. § 11-7-13 (Rev. 2004). We strictly construe Section 11-7-13. Smith v. Garrett, 287 So. 2d 258, 260 (Miss. 1973). Moreover, this Court lacks the power to expand the definition of “child.” See Burley v. Douglas, 26 So. 3d 1013, 1020 (Miss. 2009). The relevant part of the statute is as follows:

. . . Damages for the injury and death of a married man shall be equally distributed to his wife and children . . . . The provisions of this section shall apply to illegitimate children on account of the death of the natural father and to the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15. [Citation omitted]

 . . . Any rights which a blood parent or parents may have under this section are hereby conferred upon and vested in an adopting parent or adopting parents surviving their deceased adopted child, just as if the child were theirs by the full-blood and had been born to the adopting parents in lawful wedlock.

Miss. Code Ann. § 11-7-13 (Rev. 2004) (emphasis added). In addition to covering natural children, the statute includes express language that brings both adopted children and illegitimate children within the purview of “children.” The statute is silent as to in loco children. Since this Court must strictly construe the statute, we find that in loco children do not fall within the definition of children in Mississippi’s wrongful-death statute.

Justice Kitchens wrote an interesting dissent that would have reversed not based on the father’s status in loco parentis, but rather on the fact that the deceased father was not only the presumed father, but also that there had been “several separate judicial proceedings in which [he] had been recognized as Halley’s legal father,” and there had never been any judicial or extra-juducial disestablishment of parentage. ¶ 21 (emphasis in original).   

This is another of those cases where a reader who is unacquainted with the case is left scratching his or her head over two apparently completely different readings and/or interpretations of what is in the record. If Justice Kitchens is right in his reading of the record, is Hallie not a wrongful-death beneficiary?

I have no quarrel with the majority’s application of the law to its statement of the facts, but I do wonder nowadays whether the 1907 language of Fortinberry is now hopelessly antiquated. In light of the third-party custody cases and, now, this case, can it be said accurately any more, a là Fortinberry, that “The rights, duties and liabilities of one standing in loco parentis are the same as those of a natural parent”?

Non-DNA Parenthood

December 5, 2013 § 2 Comments

Disestablishing parentage has been a statutory procedure since 2011, when the legislature adopted MCA 93-9-10. I posted here an annotated version of the provision that set out my opinion of how to plead and prove it.

The MSSC at last was presented with an opportunity to address its application in the case of Jones v. Mallett, et al., handed down November 14, 2013.

Terence Jones was involved in a romantic relationship with Annette Mallett in 2000. Mallett gave birth to a child on August 22 of that year. Mallett says that she told Jones he was not the father when she learned of the pregnancy. Jones claims that he did not learn that he was not the father until after signing the paternity agreement and birth certificate application, or as much as four months later.

Jones was listed as the father on the birth certificate, and he signed it. In October, 2000, he and DHS entered into a “Stipulated Agreement of Support and Admission of Paternity,” which was approved by order of the chancery court.

In December, 2010, Jones had a DNA test performed, which excluded him as the father. He filed an action in chancery court to disestablish paternity, rather than a MRCP 60(b)(5) or (6) motion. The chancellor eventually dismissed Terence’s pleading, based on MCA 93-9-10. Terence appealed.

The supreme court brushed aside Terence’s argument that the agreement was the result of a “material mistake of fact” under MCA 93-9-10(3)(b), finding that “The facts as presented do not establish sufficient circumstances for the application of subsection (b).” [ ¶7 ]

Terence also argued that subsections (c) and (d) must be read together, mandating a finding that he meets the criteria for disestablishment, but the court rejected that position, pointing out that (c) relates to stipulations of paternity, and (d) relates to stipulations of support, which are two different things.

That last point is critical to the case because (c) says that the court may not set aside an agreement of paternity that has been approved by the court (as this one had been). Subsection (d), on the other hand allows disestablishment of parentage if he signed an agreement of support without knowledge that he is not the father of the child. That without knowledge language is significantly absent from (c). Since Terence had signed both, he had no wiggle room.

To me, the MSSC is sending the signal via this opinion that the statute will be strictly applied.

No doubt the considerable passage of time from the signing of the paternity agreement to DNA testing and the filing of suit and eventual court appearance figured into the unhappy result for Terence.

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